The sword of human justice trembles over you and
is about to fall upon your guilty head.
-"Hanging Judge" Isaac
Parker

From 1873 through 1896, eighty-seven men were executed
on the gallows at Fort Smith. All the
men executed were convicted of rape or murder. After
the Civil War, there was a mandatory federal
death sentence in cases of rape or murder.
Of the eighty-seven men executed here, seventy-nine
were sentenced to death by Judge Parker. During
Judge Parker's twenty-one year tenure, a total of
160 death sentences were handed down. Of that number,
43 were commuted to life in prison or
lesser terms; 2 were pardoned by the President;
31 had appeals that resulted in acquittals or
convictions overturned; 2 were granted new trials
and discharged; 1 was shot and killed while
attempting to escape; and 2 died in jail while awaiting
execution.
-Executions
at Fort Smith, 1873-1896 (Fort Smith National Historic Site,
National Park Service)

Perhaps no other aspect of conservatism creates more professed confusion
in people's minds than the apparent contradiction between its libertarian
impulse on the one hand and its law and order aspect on the other.
Opponents of conservatism gleefully leap upon this perceived contradiction
and portray it a kind of hypocrisy. It is, of course, no such thing.
Rather, the critics understanding of conservatism is too shallow for them
to reconcile these two seemingly competing ideas.

In fact, though conservatism does celebrate liberty and freedom, it
proceeds from the assumption that it is only possible to enjoy these blessings
in a society where order has been established. Where Liberalism posits
a state of nature in which Man lived in pastoral harmony, Thomas Hobbes,
who is often, unfairly, overlooked in tracing the history of conservatism,
envisioned quite the opposite. He wrote about the state of nature
as a place where life was "nasty, brutish, and short." This was so
because, in the absence of any mutually agreed upon restraints, it is every
man for himself, an environment in which sheer strength, superior intelligence,
and naked treachery reign. Where Liberalism views civilization as
a corrupting influence which destroyed the hitherto communal idyll, Hobbes
conjectured that government and the state were created precisely because
men felt such physical insecurity from one another that they were willing
to give up some measure of their previously unrestricted freedom to a central
authority, which would then enforce certain behavioral standards, in order
to protect men, one from the other.

It is only once such an authority has been established, and once men
have agreed upon the standards by which they will be bound, that such innovations
as capitalism, democracy, and protestantism--the freedom-guaranteeing,
but order-dependent, cornerstones of Western Civilization--are possible.
The freedom-guaranteeing aspects of these -isms is well understood, but
their order-dependent nature should also be obvious. Democracy can
only function as intended when the victors in an election are bound by
the laws and traditions of the society. If the winners could exercise
unlimited power, could trample the rights of their opponents, there would
be little to distinguish democracy from authoritarian forms of government.
Likewise, capitalism, in order to function, requires that both parties
to a contract be required to perform the obligations they have incurred.
It has become commonplace to speak of the power of the Free Market, but
it is important to recognize just how strictly we govern the behavior of
the actors within the market. There is a huge difference between
the idea that the government should not control what kind of car is produced
and what kind you have to buy and the notion that government has absolutely
no role to play in a situation where you accept delivery of a car and refuse
to make payments on it. As for protestantism (please note the small
"p"), the individual's willingness to accept that his neighbors may worship
differently, may even have a different conception of God, is predicated
on their willingness to allow him to worship as he pleases. Thus,
each of the great -isms which undergird the great freedom's which we in
the Judeo-Christian West take for granted, can be seen to depend on the
preexistence of the rule of law and on the enforcement power of the state.

The difficult task that remains, having once established this politico-religio-economic
trinity, is to maximize liberty, without sacrificing order, to retain basic
security, without extinguishing freedom. All of human history, and
every social issue, can really be boiled down then to the eternal tension
between security and freedom. Where governments rise up promising
absolute security, it is certain that they will do away with freedom.
But where freedom is absolute, where anarchy reigns, insecurity is so great
that the average man can not enjoy the benefits of freedom; death lurks
in the fist of everyone around him.

The ideal way in which to maintain the delicate balance is through an
agreed upon societal morality. Where such a morality prevails--as
did Judeo- Christian ideals in the West until recent years--behavioral
standards can be internalized, with every member of society understanding
what is expected of him by his fellow men. Where morality is not
absolute, where it is not internalized, either anarchy will reign or else
government will have to impose standards. Thus, the growth of big
government in the West has coincided with the decline of morality--it benefits
us little to argue over which is cause and which effect--turning even the
United States into an increasingly unfree society, groaning under the weight
of government regulations.

All of which is by way of introduction to one of Clint
Eastwood's very best movies : Hang
'em High. The film is often misunderstood to be merely a revenge
melodrama, little more than a Death Wish on horseback, but in reality
it explores many of the fundamental issues surrounding the establishment
of civilization. And in the end, the real hero of the movie is not
Eastwood's Jed Cooper, but Pat
Hingle's Judge Fenton, who exerts a civilizing influence not merely
over the Oklahoma Territory but also over Cooper.

The film opens with a series of powerfully Christian symbols, with Jed
Cooper (note the initials) in the role of Christ. Jed is leading
his herd of new bought cattle (his flock) across a river. A calf
strays behind and gets mired mid-river. Jed dismounts and scoops up the
calf, carrying him to shore. Only if the calf were a lamb could the
baptismal allegory be more obvious.

Jed no sooner gets to shore than a posse of men, led by Captain Wilson
(Ed Begley), rides up and surrounds him. They accuse him of stealing
the cattle and murdering their rightful owner and, despite the fact that
he can produce a bill of sale, lynch him. But after they ride
away, Marshal Dave Bliss rides up, cuts Jed down, and revives him.
He carts him off to Fort Grant with the promise/threat :

We'll give you a fair trial, then maybe hang you
all over again.

The Christian symbolism here includes Cooper (Jesus) getting in trouble
with the authorities (the Captain) for leading the flock astray.
For which he is strung up (crucified), but still survives (is resurrected).

But the scene also draws upon the tensions we discussed earlier.
Cooper bears a quintessential symbol of capitalism, the bill of sale, but
the posse refuses to recognize it, refuses in essence to be bound by the
laws of a just civilization, and they revert, though the pretext upon which
they undertake the hanging may obscure the fact, to a pre-societal lawlessness.
In acting as judge, jury, and executioner, Captain Wilson and his cohorts
behave like savages.

Meanwhile, the Marshal takes Cooper to Fort Grant, where Territorial
Judge Adam Fenton, who is based on the real life "Hanging
Judge" Isaac Parker, presides over the only court for the entire Oklahoma
and Indian Territory. He metes out a firm and unwavering justice,
but Cooper is able to prove that he was wrongly accused and is actually
a former lawman from St. Louis. Cooper threatens to hunt down and
kill the members of the posse himself, but Judge Fenton convinces him to
become a Marshal and to bring the men before him for due process and judgment,
threatening that if Cooper takes matters into his own hands, he will hang
for it.

Cooper proceeds to round up the various members of the posse (which
includes such character actors as Alan Hale, Jr. and Bruce Dern), and tries
to bring them in alive, with varying degrees of success. But when
he brings in two boys who helped Dern rustle some cattle and the Judge
sentences them to hang, Cooper begins to question the severity of the justice
Fenton is handing out. On the day of the boys' hanging, Cooper visits
the local whorehouse and is bushwhacked by Captain Wilson and a couple
of his men. Though badly shot up, he is nursed back to health by
Rachel Warren (Inger Stevens), a local store owner who has become familiar
to him through her insistence on examining each prisoner that the marshals
bring in, and the two naturally begin to fall in love. Rachel fends
off his advances though, and eventually reveals that her husband was murdered
and she raped by two men, men who she still hopes to see hung. Cooper
recognizes in her much of his own visceral desire for mere vengeance and
can perceive how it is warping her ability to live a normal life.

There are several moments here where Cooper begins to speak but then
pauses, again and then again, which by themselves should make people reconsider
Eastwood's ability as an actor and which show the real thoughtfulness of
the film. Eastwood is one of the few actors whose silences are capable
of conveying information to the viewer, but more than that, one of the
few who is confident enough of his screen presence to remain silent.

The story plays out to its inevitable conclusion, with Cooper finally
confronting the Captain, in a scene which draws once again on Christian
symbolism, this time with Wilson in the role of the post-Crucifixion Judas.
This denouement, though necessary and fitting, is less interesting than
the final set of scenes between Cooper and the Judge. Cooper, particularly
once he is in love with Rachel, wishes the Judge to temper his justice
with mercy, wants emotions such as pity to prevail over the cold reason
of absolute punishment. The Judge however, whose personal anguish
at the moments of execution the director (Ted
Post) has been careful to show us, argues that his inflexibility, the
sureness of punishment, is the only way to impose order on the Territory,
to make it worthy of statehood, of, in effect, joining civilization.
As the original Judge Parker said :

Liberty and life are precarious unless those in authority
have sense and spirit enough to defend them
under the law.

The terrible authority of the state (personified in the judge) must
establish the rule of law before freedom can flourish. And so, Jed
rides out of town alone, his star (representing the Judge's rational and
impersonal vision of Justice) pinned to his chest, quite conspicuously
by-passing Rachel's store, having rejected the more personal and emotional
type of revenge that she represents.

This is an easy enough film to enjoy just for the revenge-seeking storyline,
but stop there and you are really cheating yourself. Look a little
deeper and then deeper still and you'll find one of the more intelligent
films ever made. It explores the issues that reside right at the
core of our political system and of our civilization. It does so
with unusual insight and with a conservative sensibility which is all too
rare in Hollywood.